Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM8991. Thomas De Santos, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, Acting P.J.
Nicholas Juan Gonzalez (appellant) was charged with four felony counts involving two victims: in count 1, with forcible rape (Pen. Code, § 261, subd. (a)(2)) of D.C. between August 1 and October 31, 2006, in count 2, with a forcible lewd act (§ 288, subd. (b)(1)) upon D.C. between August 1 and October 31, 2006; in count 3, with sexual battery (§ 243.4, subd. (a)) upon J.T. by touching her vaginal area while restraining her, between July 1 and 31, 2007; and in count 4, with sexual battery (§ 243.4, subd. (a)) upon J.T. by touching her breasts while restraining her, between July 1 and 31, 2007. The jury found appellant not guilty of the charged offenses but convicted him of the lesser included offenses of misdemeanor battery (§ 242) in count 1, misdemeanor assault (§ 240) in count 2, and misdemeanor sexual battery (§ 243.4, subd. (e)(1)) in counts 3 and 4. The court placed appellant on probation for three years, with conditions including service of 120 days in the county jail on count 4. The court imposed various fines and fees.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, appellant contends that the trial court erred when it admitted a statement made by J.T. as a spontaneous statement and that counts 1 and 2 must be reversed because there is insufficient evidence that the assault and battery were committed within the one-year period before the complaint was filed. Appellant also contends, and respondent concedes, that the conviction for misdemeanor assault must be reversed because it is a lesser included offense of the conviction for misdemeanor battery. We reverse the misdemeanor assault conviction and strike the attached fees and fines. We also order modification of the judgment with respect to the fine imposed on count 1. In all other respects, we affirm.
FACTS
Counts 1 and 2
Because appellant was acquitted of the felony charges in counts 1 and 2, and because the facts of the lesser included battery and assault offenses of which he was convicted are not pertinent to any of the issues on appeal, we will recite the evidence underlying counts 1 and 2 only very briefly.
In August of 2006, D.C. was 13 years old. She lived with her mother, older sister N.C. , younger brother L.C., and four-year-old half sister N.G. Appellant was also a half sibling of N.G. Appellant was then 18 years old.
Appellant visited the household often. While at the house, he played with N.G., watched television, and napped on the couch. In the summer of 2006, according to her testimony, D.C.’s cousin noticed that appellant paid “too much attention” to D.C. and “always” touched her.
According to D.C.’s testimony, one day appellant was alone in the house with D.C. and N.G. Appellant pulled D.C. into her brother’s room, pushed her onto the bed, grabbed both of her hands, took off her jeans, and raped her. D.C. did not tell anyone at that time because she was “scared” and “they might think something wrong of me.” D.C. knew that everyone liked appellant, and she didn’t think anyone would believe her, especially her mother.
Counts 3 and 4
In July of 2007, J.T. was 16 years old and in high school. J.T. lived across the street from D.C., and D.C.’s sister N.C. was J.T.’s best friend. Appellant was also a friend and gave rides to J.T. and N.C.
In late July of 2007, appellant gave J.T. a ride from work. Appellant was driving his brother’s car. On the way home, appellant patted J.T. on the back and tried to hug her, but she moved away from him. When appellant arrived at the house where J.T. was staying, he locked the car doors and pulled J.T. toward him by grabbing her shirt.
Appellant then grabbed J.T. between her legs and rubbed her vagina about five times over her clothes. He grabbed her breasts over her clothes about seven times and kept pulling at the zipper of her shirt. Appellant asked J.T. if she “wanted to go to the back to do something.” She told him no and told him to stop, but he kept pulling on the zipper of her shirt.
Appellant then grabbed J.T.’s head and pulled it toward him and kissed her. When J.T. scratched appellant, he let go of her head and she was able to pull away. After she retrieved her cell phone, which had fallen onto the floor of the car, appellant unlocked the door, told her he was sorry and that he didn’t know what he was doing.
J.T. “rushed” into the house. She was mad at appellant, felt “[b]ad” and “betrayed,” and called N.C. and told her that appellant kissed her, wouldn’t let go of her, and didn’t want to let her out of the car. The call was made about five minutes after she left the car. J.T. told N.C. not to tell anyone. After J.T. hung up the phone, she cried.
J.T. did not call the police because she was afraid that they would not believe her. About three weeks later, J.T. told her parents what had happened.
J.T. acknowledged that she continued to talk to appellant after the incident and asked him to give her rides to work. But she made sure she was not alone with appellant.
Defense
Appellant testified in his own behalf. He denied having any sexual contact with D.C. Appellant also denied that he hugged, touched, or kissed J.T.
Appellant’s brother testified that the door locks in his car were not operable.
DISCUSSION
1. Admission of Testimony of a Complaining Witness as a Spontaneous Statement
Five minutes after she left appellant’s car, J.T., called her friend N.C. on the telephone and told her that appellant kissed her, grabbed her, would not let her go, and would not let her out of the car. The prosecution filed a motion in limine seeking to admit these statements under Evidence Code section 1240, the spontaneous statement exception to the hearsay rule. Following discussion, the court agreed that the statements were admissible. We reject appellant’s contention that the spontaneous statement exception does not apply because there was no evidence that J.T. “was nervous, excited, in extreme pain or under any other state of mind so as to prevent the ability to fabricate.”
During the hearing on the motion, the prosecution argued that the statements were also admissible under Evidence Code sections 791 and 1236 as a prior consistent statement and “under the fresh complaint doctrine.” The court ruled that it would not allow the statements as a fresh complaint. The court made no ruling on whether the statements were prior consistent statements, finding the issue premature.
Hearsay evidence is statutorily defined as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) “Except as provided by law, hearsay evidence is inadmissible.” (Id., subd. (b).) Evidence Code section 1240 establishes a hearsay exception for so-called spontaneous statements and provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress and excitement caused by such perception.”
To render statements admissible under Evidence Code section 1240,
“‘it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.)
The theory underlying this exception is that the absence of sufficient time for reflection, and the corresponding absence of sufficient time for deliberative fabrication, supply an adequate assurance of the statement’s trustworthiness. (Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 272.)
The decision to admit a statement under Evidence Code section 1240 is committed to the sound discretion of the trial court. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1290.) The factual circumstances may differ in each instance and, as a threshold matter, the court must determine whether the declarant was still acting under the stress of excitement when making the statement, and whether he or she was narrating or describing an event personally perceived. (People v. Morrison (2004) 34 Cal.4th 698, 719; People v. Brown (2003) 31 Cal.4th 518, 540-541.) We must uphold the preliminary determination of these facts so long as they are supported by substantial evidence, and we review the ultimate decision to admit the evidence under the deferential abuse-of-discretion standard. (Brown, supra, at p. 541; People v. Phillips (2000) 22 Cal.4th 226, 236.)
Here, the trial court could reasonably conclude that the preliminary facts necessary to trigger the spontaneous statement exception had been met. J.T. had already testified that, after she was able to get out of appellant’s car, she “rushed” into the house feeling “[b]ad, betrayed” and “mad.” Within five minutes, she called N.C. to tell her what appellant had done. She cried after she completed the telephone call. It is apparent from J.T.’s testimony that she was still under the “stress and excitement” caused by the assault at the time of the telephone call.
This case differs from People v. Pearch, supra, 229 Cal.App.3d 1282, cited by appellant. In Pearch, the homicide victim telephoned his brother on the night of the killing, asked him for money, and claimed to have been “hurt.” The trial court admitted evidence of the conversation as a spontaneous statement, even though it specifically determined that the victim had been hurt hours before making the call. The appellate court held that this was error because, having made the factual determination that the victim was hurt at some earlier time, the trial court lacked any basis for concluding that the victim lacked the opportunity to reflect or deliberate at the time of the call. (Id. at pp. 1290-1291.) Here, in contrast, the court could reasonably find (and implicitly found) that J.T. was still acting under the stress of the startling event when she made the telephone call and spoke to N.C. , and that she therefore lacked the opportunity to reflect or deliberate.
Substantial evidence supports the trial court’s determination that the statements by J.T. to N.C. satisfied the elements of the spontaneous statement exception of the hearsay rule, and the trial court did not abuse its discretion in admitting those statements into evidence.
2. Statute of Limitations on Counts 1 and 2
Appellant argues that his convictions on counts 1 and 2 must be reversed because the crimes were barred by the statute of limitations. In the circumstances presented here, where appellant specifically and expressly requested that the lesser offense instructions be given, we hold that appellant forfeited his right to object.
Appellant was originally charged in a complaint filed November 15, 2007, which alleged the offenses in counts 1 and 2 occurred on or about October 31, 2006. The subsequent information, filed January 3, 2008, alleged that the offenses were committed between August 1, 2006, and October 31, 2006. The alleged felony offenses were within the applicable statute of limitations. (§ 801.1 subd. (a) [prior to victim’s 28th birthday].) The misdemeanor lesser offenses, however, carried only a one-year period of limitation and thus were outside the statute. (§§ 240, 241, subd. (a), 242, 243, subd. (a), 802, subd. (a).)
Appellant requested that the lesser offense instructions be given. He made no mention of the statute of limitations. Neither did the court nor the prosecutor address that topic.
During a discussion between court and counsel, the prosecutor declined to request instruction on lesser included offenses as to counts 1 and 2. Defense counsel then said, “I’d include them,” explaining “I’m going to argue nothing happened, but for purposes of—you know, for appellate purposes I think I want to leave them in there.”
As explained in People v. Williams (1999) 21 Cal.4th 335, 337 (Williams),
“For over 60 years, this court described the statute of limitations as limiting the court’s subject matter jurisdiction and said that trial courts could not proceed in a time-barred case. (E.g., People v. McGee (1934) 1 Cal.2d 611 (McGee); People v. Chadd (1981) 28 Cal.3d 739, 756-757 (Chadd).) Accordingly, ‘this court and the Courts of Appeal have repeatedly held that a defendant may assert the statute of limitations at any time.’ (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 (Cowan).) In Cowan, we adjusted the rationale of these cases, although not their holdings, to accommodate a situation they did not anticipate. We held that the defendant ‘may expressly waive the statute of limitations when … the waiver is for his benefit’ (id. at p. 370) and overruled language in prior cases ‘to the extent it suggests a court lacks fundamental subject matter jurisdiction over a time-barred criminal action.’ (Id. at p. 374.)”
In Cowan, the defendant was charged with three 10-year-old murders. He entered a no contest plea of voluntary manslaughter. Before sentencing, the prosecutor moved to set aside the plea as illegal because the statute of limitations had run on the lesser offense. The defendant offered to waive the statute of limitations, but the trial court rejected the offer on the ground that the defect was a jurisdictional one that could not be overcome by stipulation. (Cowan, supra, 14 Cal.4th at p. 370.) Cowan held that the trial court should have accepted the plea. Noting that a waiver is the “‘intentional relinquishment or abandonment of a known right’” as opposed to a forfeiture, which is the failure to make the timely assertion of a right, Cowan held a defendant “may expressly waive the statute of limitations when … the waiver is for his benefit.” (Id. at pp. 370, 374.) Cowan reasoned that, because the court had the power to proceed over the murder charge, it should also have the power to proceed over a lesser included (or even related) offense. (Id. at p. 373.) But Cowan expressly did not decide an issue not presented in that case—“whether [the court] should … hold that the statute of limitations in criminal cases is an affirmative defense, which is forfeited if a defendant fails to raise it before or at trial.” (Id. at p. 374.)
In Williams, the court addressed the issue of forfeiture and held that a defendant “may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense,” and even “if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time.” (Williams, supra, 21 Cal.4th at p. 338.) The defendant in Williams was charged with an offense that was time-barred, based on the allegations of the information. When he raised this issue for the first time on appeal, the People argued the defendant had forfeited his right to raise this argument because he failed to assert it below. The high court disagreed. It held that the statute of limitations was not an affirmative defense, and the defendant could raise the statute of limitations challenge for the first time on appeal. (Id. at p. 341.) But the court left for another day “the proper rules to apply to convictions of time-barred lesser offenses when the charged offense is not time-barred.” (Id. at p. 338.)
In People v. Stanfill (1999) 76 Cal.App.4th 1137 (Stanfill), the court addressed a situation involving application of the forfeiture doctrine to the limitations period for a lesser included offense. The Stanfill defendant had requested instructions on a lesser included offense and was convicted of the same. (Id. at pp. 1139, 1142, fn. 1.) On appeal, he claimed the lesser included offense was time-barred. (Id. at pp. 1142-1144.) The Stanfill court disagreed and held that a defendant “forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense.” (Id. at p. 1150.) As reasoned in Stanfill:
“Without a rule that acquiescence or failure to object acts as a forfeiture, the defendant may remain quiet about a limitations problem, avoid the ritual of formal waiver and then, as an ace up his sleeve, secure reversal on the theory that he never expressly waived. This is an unconscionable result that calls for a forfeiture rule. Beyond removing the incentive for gamesmanship, ‘requiring a defendant to raise a statute of limitations issue in the trial court … would encourage the parties to focus on the issue at that level, where it can be fully explored and an adequate record developed.’ (Cowan, supra, 14 Cal.4th at p. 387 (conc. & dis. opn. of Brown, J.).) We would also prevent surprise and prejudice to the prosecution. Because lesser included offenses are not charged in the accusatory pleading, ‘there is no reason for the prosecution to include discovery or tolling allegations as to those offenses. [Citations.]’ (Id. at p. 387, fn. 2.) Raising the issue in the trial court would allow an opportunity to amend the accusatory pleading to rectify those situations where tolling provisions might apply to the lesser offense. (Ibid.; ….) Finally, proper resolution of the issue in the trial court would, of course, remove any need for an appeal, reversal and retrial on that issue, a delay that could prejudice both parties by fostering stale evidence and dull memories (Cowan, supra, 14 Cal.4th at p. 387 (conc. & dis. opn. of Brown, J.))—paradoxically, the key reasons for having a statute of limitations in the first place.” (Stanfill, supra, 76 Cal.App.4th at pp. 1148-1149.)
Appellant argues that Stanfill was wrongly decided, because it contravenes the holding in Cowan supporting a requirement for an express and informed waiver by a defendant. But we agree with Stanfill and adopt its reasoning here: In order to avoid an “unconscionable result,” where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on a lesser included offense, the defendant forfeits the right to complain on appeal of conviction of a time-barred lesser offense. (Stanfill, supra, 76 Cal.App.4th at p. 1148.)
We reject appellant’s claim that People v. Beasley (2003) 105 Cal.App.4th 1078 controls the issue here and not Stanfill. In Beasley, the court reversed the defendant’s conviction on time-barred lesser included offenses. (Beasley, at p. 1090.) The court found Stanfill inapplicable because “nothing in the record indicates [the defendant] requested or acquiesced in the instruction on assault as a lesser included offense of assault with a deadly weapon.…” (Beasley, at p. 1090.) But as we noted above, the record here does indicate that defense counsel specifically requested the giving of the lesser offense instructions, and appellant has therefore forfeited his right to raise the statute of limitations on the lesser offense on appeal. (People v. Stanfill, supra, 76 Cal.App.4th at p. 1150.)
3. Conviction for Assault in Count 2 Reversed
Appellant contends that his conviction of assault in count 2 must be reversed because it is a lesser included offense of battery, of which he was convicted in count 1. Respondent agrees, as do we.
The information charged appellant in count 1 with rape and in count 2 with a forcible lewd act with a child. The prosecutor argued that the two counts were intended as alternative charges, based on the same set of acts. The jury convicted him of the lesser included offense of misdemeanor battery in count 1 and the lesser included offense of misdemeanor assault in count 2. A defendant cannot be convicted of both assault and battery on the same victim for the same act, because every battery includes an assault, and when a defendant is convicted of a greater and a lesser included offense, the conviction for the lesser offense must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 355; People v. Lopez (1975) 47 Cal.App.3d 8, 15.)
Because the conviction on the lesser offense of assault in count 2 is included in the battery in count 1, we reverse the assault conviction. We also strike the fees and fines attached to the count 2 conviction.
Though it is not addressed by the parties, we note that the trial court designated the wrong Penal Code section when it imposed a $100 fine on count 1. The reporter’s transcript reflects that the fine was imposed pursuant to section 290.3. By its terms, however, that section does not apply to the offense of misdemeanor battery. The correct section for imposition of the fine was and is section 243, subdivision (a).
DISPOSITION
Appellant’s conviction for misdemeanor assault in count 2 is reversed. We order that the following fines and fees attached to count 2, totaling $380, be stricken and an order be amended: (1) the $20 fee imposed pursuant to section 1465.8; (2) the $100 fine imposed pursuant to section 290.3; (3) the $100 state penalty assessment assessed pursuant to section 1464; (4) the $20 state surcharge ordered pursuant to section 1465.7; (5) the $70 county penalty assessment assessed pursuant to Government Code section 76000; (6) the $50 court construction penalty ordered pursuant to Government Code section 70372; (7) the $10 DNA-funding penal assessment ordered pursuant to Government Code section 76104.6; and (8) the $10 DNA-funding penal assessment ordered pursuant to Government Code section 76104.7. Because appellant was not convicted of a felony, we direct the order that he submit to testing under section 296, subdivision (a)(1) be corrected to accurately reflect section 296, subdivision (a)(2).
As to count 1, we exercise our discretion to modify the judgment to reflect that the $100 penal fine on that count is imposed pursuant to section 243, subdivision (a) and not section 290.3. (Code Civ. Proc., § 43.)
Otherwise the judgment is affirmed. The trial court is directed to prepare a minute order reflecting the orders detailed above.
WE CONCUR: HILL, J., POOCHIGIAN, J.